CHARLES WILLIAM TYLER v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 15, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002623-MR
CHARLES WILLIAM TYLER
v.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 93-CR-00082-001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND McANULTY, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Charles William Tyler, pro se, has appealed
from an order of the Marion Circuit Court entered on November
24, 2003, which denied his motion requesting credit towards his
Kentucky prison sentence for 4,657 days he served in federal
custody before his arrest on Kentucky charges.
1
Having concluded
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
that the trial court did not err in denying Tyler credit for the
previously served time, we affirm.
On July 3, 1980, Tyler was convicted on federal
charges by a jury in the United States District Court, Southern
District of West Virginia, and was sentenced to 22 years in
federal prison.2
Tyler received a mandatory release from the
federal sentence on December 4, 1992, and did not serve the
remainder of time on his federal sentence.
On June 9, 1993,
approximately six months after his release from federal custody,
Tyler was indicted by a Marion County grand jury for burglary in
the first degree,3 robbery in the first degree,4 theft by
unlawful taking over $300.00,5 and two separate counts of being a
persistent felony offender in the first and second degree (PFO I
and PFO II).6
The indictment alleged that on or about February
25, 1993, in Marion County, Kentucky, Tyler and two other men,7
armed with handguns, identified themselves as police officers
2
The charges that led to Tyler’s federal conviction include: Interstate
Transportation of Stolen Property, Violations of the Federal Firearms Act,
and Possession with the Intent to Distribute Heroine, Cocaine and Marijuana.
3
KRS 511.020.
4
KRS 515.020.
5
KRS 514.030.
6
KRS 532.080(2) and (3).
7
One of the men was Michael Stricker.
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and entered the home of Gary D. Mattingly8 and took items from
the Mattingly residence valued at approximately $12,620.00.
A jury trial was held on February 28, 1995, and Tyler
was found guilty as charged in the indictment.
On April 18,
1995, the trial court entered its final judgment and sentenced
Tyler to prison for two life terms for robbery and burglary and
20 years for theft.
The sentences were ordered to run
concurrently with each other, but consecutively “with all other
charges [for which] he was on probation or parole at the time he
committed those crimes [on] Feb. 25, 1993.”
Tyler appealed the judgment and our Supreme Court
ordered9 that the conviction for theft be dismissed.10
On
October 22, 1997, Tyler filed a RCr 11.42 motion claiming
ineffective assistance of counsel.
By order entered on May 12,
1998, the trial court denied Tyler’s motion and he appealed to
8
Once inside the Mattingly residence, the men told Gary and his wife, Martha,
that they were there to question them. One of the men led Gary into the rear
bedroom, advised him of his rights, informed him that he was under arrest,
then tied his hands with plastic ties and forced him to lie face down on the
floor. Meanwhile, Martha was taken into the kitchen where she was questioned
regarding the location of a safe that was allegedly inside the house. Martha
was then taken into the rear bedroom and tied in the same manner as Gary. In
addition to Gary and Martha, the Mattingly children were forced to sit on the
couch, then they too were tied up. Prior to leaving, the three men took the
following items from the residence: one 357 magnum pistol, $710.00 in cash,
one Rolex watch, one three-and-one-half carat diamond ring, two sweetheart
rings, one diamond ring in the shape of a flower, one liberty coin ring,
assorted cosmetic jewelry, one Phantom of the Opera charm, and one cross
charm.
9
Case No. 1995-SC-0627-MR, not-to-be published, final on September 19, 1996.
10
Because Tyler was convicted of robbery in the first degree, our Supreme
Court held that an additional conviction for theft constituted double
jeopardy.
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this Court.
After determining that the Commonwealth, during the
sentencing phase of the trial, had failed to present properly
authenticated and attested copies of out-of-state records
concerning Tyler, this Court vacated the PFO I conviction and
remanded11 the case.
On remand, the Commonwealth made the following written
plea offer:
On plea of guilty to PFO I, Commonwealth
recommends 25 years on each count,
concurrent one with the other for a total of
25 years to run concurrently with any and
all federal sentences currently applicable
to Defendant or applicable to him at any
time since his arrest herein [emphasis
added].
Tyler accepted the Commonwealth’s offer, but the trial court’s
final judgment and sentence, entered on July 17, 2001, ordered
Tyler to be imprisoned for a maximum term of “25 [years] each on
each [count] to run concurrent & concurrent with any federal
charges now serving [emphasis added].”
On November 15, 2001, Tyler filed a motion12 claiming
that he had served 4,657 days in federal custody between March
1980 and December 1992 prior to his mandatory release, and that
those days should be credited towards his state sentence.
11
The
Case No. 1998-CA-001462-MR, not-to-be published, final on March 21, 2001.
12
This motion was not styled as an RCr 11.42 motion, but rather as a “MOTION
FOR FEDERAL TIME CREDIT PURSUANT TO KRS 523.110(1)[sic]; 532.115; AND
532.120(1)(a).”
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trial court denied Tyler’s motion by order entered on December
3, 2001, which stated, in relevant part, as follows:
The number of days credit was to be
determined by the Department of Corrections.
The Defendant was given credit for the time
served from December 30, 1993. The
defendant now wants credit for time he
served on federal charges from March 2, 1980
to his release on December 4, 1992, all of
which occurred prior to these offenses. He
claims that a detainer/warrant lodged
against him by the U.S. Department of
Justice (USDOJ) for mandatory release
violation entitles him to a credit for the
days he served prior to this offense. That
is not what the Judgment and Sentence calls
for. The Judgment that was entered on July
16, 2001, only allows the state time to run
concurrent with any federal time now
serving.
At the present time, it does not appear
that the Defendant is serving any federal
time in that a detainer is all that has been
filed against him. It does not appear that
the balance of his federal time (if any) was
revoked at the time of his sentencing on
July 16, 2001. Even if it was, the
Defendant would only be entitled to run his
state time with his new federal time and the
number of days credit would still only
relate back to the original arrest date on
those state charges.
Tyler did not appeal this decision.
However, almost
two years later, on September 11, 2003, Tyler filed another RCr
11.42 motion, raising the identical issue he raised in his
November 15, 2001, motion and arguing that he should receive
credit for the 4,657 days he served in federal custody prior to
his arrest in Marion County.
In the motion at issue, Tyler
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alleged that his trial counsel was ineffective for allowing him
to enter a guilty plea because the language in the
Commonwealth’s plea offer and the language in the final judgment
differed.
Tyler contended that the terms of the final judgment
denied him credit for the time he served in federal custody,
thus requiring him to serve more days of his state sentence than
required by the plea offer.
After reviewing Tyler’s RCr 11.42 motion, the trial
court, in an order entered on November 24, 2003, credited
Tyler’s state sentence with 158 days that he had served in a
federal in-transit facility between April 8, 1998, and September
2, 1998, but did not give him credit for the 4,657 days he
served prior to his arrest in Marion County.
The order stated,
in relevant part, as follows:
A history of the Defendant’s
incarceration is helpful to the disposition
of the matter herein. Tyler was sentenced
to twenty two years (22) in federal prison
in 1980. He subsequently received a
mandatory release from the federal system on
December 4, 1992. At the time of the
commission of this offense in 1993, Tyler
was not in federal custody. At most, Tyler
was on supervised release as verified by a
phone conversation with Stephen Cruez,
Inmate Systems Manager in Loretto,
Pennsylvania. The next federal action
regarding Mr. Tyler was when he was placed
at an in-transit facility on April 8, 1988
after picking up on his state charges.
Tyler was then released from Federal custody
on September 2, 1988 as it appears his time
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was run concurrent with his Kentucky
sentence.
The Defendant’s plea agreement
recommended 25 years on each count, to run
concurrently with any and all Federal
sentences currently applicable to defendant
or applicable to him at any time since his
arrest herein. The Judgment entered by the
Court on July 17, 2001 stated that the
Defendant was sentenced to 25 years on each
count to run concurrent and concurrent with
any federal charges now serving. The
Defendant was not serving any federal
sentence at the time of his sentencing, nor
has he served any federal time since then.
The Court finds that the only Federal
time to which Defendant Tyler should be
given credit by the Department of
Corrections would be the time period
incarcerated at an in-transit facility in
the Federal system from April 8, 1998 to
September 2, 1998 consisting of 158 days.
. . .
The Defendant’s Motion for modification
of his sentence is GRANTED insofar as the
Defendant should receive 158 days of credit
for jail time served in the federal system
from 4/8/98 to 9/2/98 if he has not already
been credited same by the Department of
Corrections.
This appeal followed.
Tyler contends that pursuant to the July 17, 2001,
plea agreement and judgment, he should be given credit on his
state sentence for the days he served in federal custody between
March 1980 and December 1992.13
According to Tyler, his federal
13
In his brief, Tyler claims that “[t]he only issue that should be brought to
light is [w]hether the [a]ppellant, Charles W. Tyler[,] was on [f]ederal
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and state sentences should run concurrently, and thus, credit
for one should extend to the other pursuant to KRS 197.03514 and
KRS 532.115.15
In summarizing the procedure for appellate review in
criminal cases in Gross v. Commonwealth,16 the Supreme Court of
Kentucky stated that the structure for appellate review is not
haphazard or overlapping.17
A criminal defendant must first
bring a direct appeal when available, then utilize RCr 11.42 by
[p]arole or on [f]ederal [s]upervised [r]elease.” However, we conclude that
Tyler was on mandatory release not parole or supervised release.
14
KRS 197.035 states:
(1)
(2)
15
A sentence, on conviction of a felony, imposed upon a
confined prisoner for a crime committed prior to the
date of his instant commitment, if designated to be
served consecutively, shall be added to the sentence or
sentences being served.
If the additional sentence is designated to be served
concurrently, or the commitment is silent, he shall be
considered as having started to serve said sentence on
the day he was committed on the first sentence.
KRS 532.115 states:
The court in sentencing a person convicted of a
felony, shall be authorized to run the sentence
concurrent with any federal sentence received by that
defendant for a federal crime and any sentence received
by that defendant in another state for a felony
offense. The time spent in federal custody and the
time spent in custody in another state under the
concurrent sentencing shall count as time spent in
state custody; but the federal custody and custody in
another state shall not include time spent on probation
or parole or constraint incidental to release on bail.
If the court does not specify that its sentence is to
run concurrent with a specific federal sentence or
sentence of another state, the sentence shall not run
concurrent with any federal sentence or sentence of
another state.
16
648 S.W.2d 853 (Ky. 1983).
17
Id. at 856.
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raising every error of which he should be aware.18
The Court in
Sanborn v. Commonwealth,19 clearly explained the standard of
review for a RCr 11.42 motion, stating that “[s]uch a motion is
limited to issues that were not and could not be raised on
direct appeal.”
The Commonwealth contends that since this issue has
already been decided twice previously by the trial court, we are
precluded from reviewing this appeal by the doctrine of res
judicata.20
The doctrine of res judicata is an affirmative
defense that bars repetitious suits involving the same cause of
action.21
For res judicata to apply, the issues in the current
claim and the issues in a previously litigated claim must be
identical.
The pivotal determination which must be decided is
if the claims in each action arise from the “same transactional
nucleus of facts.”22
We agree that Tyler’s claim before this Court may be
barred by res judicata.
However, since Tyler’s motion was filed
pro se, he is not held to the same rigid procedural standards as
18
Gross, 648 S.W.2d at 856.
19
975 S.W.2d 905, 908-09 (Ky. 1998).
20
Res judicata encompasses both issue and claim preclusion and is not to be
used as synonymous with either individually, but rather equally with both.
Yeoman v. Commonwealth, 983 S.W.2d 459, 464-65 (Ky. 1998).
21
Yeoman, 983 S.W.2d at 464.
22
Id. at 465.
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a litigant who is represented by counsel.23
Therefore, we will
consider the validity of Tyler’s argument, even though, we hold
that he is still not entitled to the relief he seeks.
The question before us is whether the time Tyler had
already served under the previous federal sentence was to be
considered in computing Tyler’s state sentence.
We are not
persuaded that either KRS 197.035 or KRS 532.115 is applicable
in this case.
KRS 197.035 merely explains the terms
“consecutively” and “concurrently.”
KRS 532.115 concerns the
concurrent service of a federal felony sentence or a felony
sentence from another state, but it does not allow credit for
time spent on probation or parole.
We conclude that the applicable statute is KRS
532.120(3), which provides, in relevant part, as follows:
Time spent in custody prior to the
commencement of a sentence as a result of the
charge that culminated in the sentence shall be
credited by the court imposing sentence toward
service of the maximum term of imprisonment.
If the sentence is to an indeterminate term of
imprisonment, the time spent in custody prior
to the commencement of the sentence shall be
considered for all purposes as time served in
prison.
The commentary to this statute states that “[i]t should be
noticed that [Subsection 3] provides credit only for the amount
of time spent in custody for the offense of which an offender
23
See Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983).
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stands convicted.”
“This statement offers a stronger indication
that only the time spent in custody, which is solely due to the
charge for which a defendant is ultimately sentenced, should be
credited against that sentence.”24
Thus, a person cannot receive
jail-time credit for time he spent in custody before a
subsequent charge occurs.
“Credit for time spent in custody
prior to the commencement of a sentence applies only where the
custody was a result of the charge that culminated in his
sentence.”25
Therefore, since Tyler’s state convictions were
separate and distinct offenses and were not a result of his
federal charges, he is not entitled to receive credit for the
4,657 days he served in federal custody.
Tyler claims that his co-defendant, Stricker,
previously received a favorable decision from this Court which
involved the same language contained in his plea agreement and
final judgment.
In Stricker,26 this Court vacated the sentence
and remanded the case to the trial court for an accurate
determination of the credit to be given to Stricker’s sentence.
This Court ruled that there was a conflict between the plea
agreement and the final judgment and held that the language in
24
Mills v. Commonwealth, 723 S.W.2d 859, 860 (Ky.App. 1986).
25
Handley v. Commonwealth, 653 S.W.2d 165, 166 (Ky.App. 1983) (citing KRS
532.120(3)).
26
Stricker v. Commonwealth, 2002-CA-000204-MR, rendered August 8, 2003, notto-be-published.
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the plea agreement entitled Stricker to credit for the federal
time he served between September 1993 and April 1994, after his
arrest but prior to his conviction.
Tyler claims that his
sentence should, likewise, be vacated, and his case should be
remanded since he and Stricker received the same plea agreement
and were sentenced on the same day.
Regardless of this Court’s
analysis in Stricker, we conclude that Tyler is not entitled to
relief because unlike Stricker, Tyler was not in federal custody
between the time the warrant was issued for his arrest on the
state charges and the entry of his guilty plea.
After the Marion County warrant was issued against
Stricker, but before he stood trial, Stricker began serving a
20-month federal sentence on September 9, 1993.
On April 4,
1994, seven months after he began serving his federal sentence,
Stricker was transferred from the federal penitentiary to the
Marion County jail to stand trial on the February 25, 1993,
charges.
Stricker appealed his conviction, and this Court held
that “[u]nder the literal terms of the plea agreement, those
seven months should be credited to him based upon an
interpretation that the phrase ‘since his arrest herein’ refers
to the execution of the [Marion County] warrant[,]” whereas the
terms “now serving” would not include the seven months he served
on his federal sentence because he was not serving the federal
sentence at the time the final state judgment was entered.
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Unlike Stricker, Tyler was out of federal custody,
and at liberty on mandatory release, at the time the Marion
County warrant was issued against him.
At no time after the
Marion County warrant was issued, or prior to the entry of his
guilty plea, was Tyler detained in federal custody.
Therefore,
Tyler is not eligible to receive credit for the 4,657 days he
spent in federal custody.
He has already received credit for
the 158 days he served in a federal in-transit facility, and
this is all the credit he is entitled to under either the
language of the plea agreement or the final judgment.
Our decision in this case is consistent with Stricker,
since in Stricker, this Court gave Stricker credit for some of
the federal sentence he had previously served, but also denied
him credit for a one-year sentence he served in federal custody
in 1991, prior to the commencement of the Marion County charges.
The one-year sentence Stricker sought credit for and the 4,657
days Tyler is seeking credit for are analogous in the sense that
neither sentence was being served at the time the Marion County
warrant was issued.
Both the one-year sentence Stricker sought
credit for and the 4,657 days Tyler is seeking credit for
occurred prior to the return of the Marion County indictment.
With regard to Stricker’s 1991 sentence, this Court stated that
“[Stricker’s] reasoning is premised on an assumption that he was
still serving time on his sentence when in fact he was at
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liberty on a supervised release at the time of his arrest in
Marion County on state charges.
We do not agree that released
supervision equates with time actually served.”27
Thus, we see
no inconsistencies between the ruling in this case and the
ruling in Stricker.
Because we find no merit in Tyler’s argument that he
was entitled to credit for additional days served in federal
custody, we hold that any inconsistency between the plea
agreement and the final judgment did not prejudice Tyler or
alter the outcome of his sentence.
Accordingly, his claim for
ineffective assistance of counsel has no merit.
For the foregoing reasons, the order of the Marion
Circuit Court is affirmed.
HUDDLESTON, SENIOR JUDGE, CONCURS.
McANULTY, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles W. Tyler, Pro Se
West Liberty, Kentucky
Gregory D. Stumbo
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
27
Tyler argues that, unlike Stricker, he was not on released supervision.
However because he was on mandatory release, we fail to see how this is
relevant.
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